article. This provision appears to make it allowable for manufacturers of patented articles to fix the resale price and other conditions of sale. Under such circumstances the cutting of the price of patented articles fixed by the manufacturer appears to be regarded as unfair competition.

The appellate court of Torino declared it to constitute unfair competition according to section 8 of the patent law to buy goods, manufactured and patented in Italy, in a foreign country and to resell them in Italy at a lower price than that fixed by the holder of the patent or by the sole selling agent.1

CIVIL CODE.-Article 1151 of the Italian Civil Code contains a general provision of law applicable to cases of unfair competition similar to that found in article 1382 of the French Civil Code. The language of this article is as follows:

ART. 1151. Every act of a person which causes damage to another, obliges him by whose fault the damage has been caused to compensate for said damage. As a result of the interpretation of this provision, its application is practically limited to cases where deceit or an unlawful act on the part of the offender can be shown.2

Article 1151 of the Civil Code is supplemented by article 1152, which provides that every person is responsible for the damage caused not only by his own acts, but as a result of his negligence or imprudence, and also by article 1153, which provides that every person is equally liable for injuries resulting from his own acts and for injuries resulting from the acts of persons for whom he is responsible or of chattels in his custody.

The following cases illustrate the application of article 1151 to unfair competitive practices:

Enticing customers.-The practise of drawing prospective purchasers away from a competitor was held to constitute unfair competition by a Venice court. A novelty dealer, who had placed a runner in front of a competitor's shop to coax buyers away and into his own shop, was held liable for damages in an action charging unfair competition under section 1151 of the Civil Code. The court said:

As long as one of these runners, of whom the house of Pauly speaks, stands in the neighborhood of a shop in the public street, even placing himself at a show window, and remains in a purely contemplative attitude, it may be spoken of as annoyance, but not as direct offence. On the contrary, there is damage when the runner becomes active and seeks to turn the customers aside, whether by treating with them directly or by treating with the persons who accompany

them.

1 Corte d'appello, Torino, 15 maggio 1912, Consorzio Agrario Cooperativo di Torino c. Martin Cultivator Co.: Mon. d. Trib., 1912, p. 956.

2 Ramella, Trattato della Proprietà Industriale, 1909, II, p. 372.

Trib. di Venezia, 14 aprile 1904.

Societa Salviati Jesurum c. Ditta Pauly e C.

Rivista di Dir. Com., 1901, II, p. 468.

Every merchant has the right that anybody freely enter into his shop: this is a right which it was not necessary to write in any code, precisely because it is inherent in the liberty and in the very life of trade.

Another merchant who for purposes of competition seeks to dissuade him who by approaching has manifested the intention of entering into a shop makes an attack upon that right.

Deceptive advertising.-The owner of a hotel in the health resort Bellagio, who had distributed posters which announced that during the approaching winter season the principal hotels of the resort would be closed and that his hotel would be the only one to remain open all the year round, was held liable for damages to another hotel keeper of the same place whose hotel was also open throughout the year.1

Misrepresentation. The proprietor of a hotel in Sestri Levante, where reservations had been made for a noted American, was granted damages against a competitor who had maliciously induced the traveler to become a guest at his hotel instead of the other by means of false statements concerning reservations made by representatives of the defendant hotel.2

Divulging trade secrets.—A lye manufacturer at Milan got judgment for damages against a competitor who offered to furnish the plaintiff's customers with the formula used by the plaintiff either at a stipulated price or in return for their agreement to buy from him for several years certain materials required by the formula.3

Disparaging statements.-A druggist was found guilty of unfair competition who had dissuaded others from buying at a competitor's drug store by asserting that the goods of the latter were of an inferior quality.

The publication by a physician of letters purporting to come from patients as expressions of gratitude for alleged medical and surgical cures, and weaving thereinto disparaging allusions to some other physician, without naming the latter but in such a manner that the average reader knew to whom the disparaging statements referred, was held to constitute unfair competition, because thereby the honor and professional reputation of the plaintiff were prejudiced in the eyes of his patients."

A manufacturer of "Sapocarbol," who in advertising this article made disparaging statements about a competing product called "Lysoform," was held to be guilty of unfair competition, under sec

1 Corte d'appello, Milano, 12 settembre 1906, Ferrario c. Gilardoni; Mon. d. Trib.. 1907, p. 32.

* Corte di Cassazione, Torino, 12 gennaio 1914, Capelini c. Jensch; II Filangieri, 1914, p. 419.

3 Corte d'appello, Milano, 19 novembre 1907, Van Baerle e C. c. Heiman e C.; Mon. d. Trib., 1908, p. 148.

4 Corte di Cassazione, Torino, 9 settembre 1913, Vassallo c. Pattarino; Il Filangieri, 1914, p. 431.

Corte d'appello, Parma, 21 maggio 1912, Prati c. Garovi; II Diritto Commerciale. 1913, II, p. 97.

tion 1151 of the Civil Code, for maliciously enticing the customers of a competitor by unlawful and fraudulent means.1

A freer range to public-service companies than to ordinary business concerns is suggested by the decision in a case where a cooperative society, in its effort to get a new telephone concession for Milan and vicinity, employed an engineer to appear before a public meeting and discuss the defects and inconveniences of the service furnished by the "Alta Italia," as well as the advantages that would accrue to the public from the proposed enterprise. In denying relief to the "Alta Italia" the court said that since a public franchise was sought vital interests of the public were at issue, and under such circumstances public criticism and censure, such as was complained of, does not constitute unfair competition, but is a legitimate right of the public whenever the conditions depicted actually exist.2

Assuming or imitating distinctive designations of another.Where a manufacturer at Catania who made use of a picture of Ætna and Catania Harbor on the labels for his sauce complained of the use by a competitor in another town of similar labels for a similar sauce, so put up as to clearly resemble the plaintiff's product, the court held that whoever manufactures or sells a product similar to that previously manufactured or sold by another person must abstain from any artifice which is calculated to deceive purchasers regarding the provenance of the goods, especially if the original manufacturer or dealer has in the course of a long period of years established a reputation for his goods and, besides, has made them recognizable to the public by special external distinguishing marks.3

A new concern at Milan was obliged to pay damages for getting out a catalogue designed after the catalogue of a company with an established reputation, giving the same descriptions of the goods listed and pricing each article at a lower figure than that named by the old company. Similarly a lye dealer at Milan, after building up a trade as sole agent for Heimann's "Stella-Sole" lye, began to use the name and similar advertising matter in the sale of a lye of his own make and was sued therefor. His plea that the terms "Stella" and "Sole" were in common use in the trade was unavailing and he was obliged to pay damages.

The application of section 1151 of the Civil Code to the misuse of a trade name in order to cause confusion as to the manufacturer of goods is illustrated by the following case:

1 Corte d'appello, Milano, 1 febbraio 1911, Industria Italiana dei Disinfettanti c. Brioschi; Mon. d. Trib., 1911, p. 169.

* Trib. di Milano, 3 luglio 1900; Riv. di Diritto Com., 1904, Pt. II, p. 470.

Corte d'appello, Catania, 29 dicembre, 1911, Narcisi c. Idonia; La Legge, 1912, p. 563. Corte d'appello, Milano, 7 agosto 1907, Kahn c. Levi; Mon. d. Trib., 1907, p. 849. Corte d'appello, Milano, 11 ottobre 1907, Barbareschi c. Heimann; Mon. d. Trib., 1908, p. 153.

A company was formed at Maregliano with the name Fratelli Branca fu Carlo & Co., which competed with another concern having the name Fratelli Branca located at Milan. The latter concern brought suit against the former for unfair competition. The court ordered the defendants to discontinue such a use of their own name on their vermouth as was likely to lead the public to believe that it was put up by Branca Bros. of Milan.1

Section 6. Spain.

Article 1902 of the Civil Code of Spain contains a general provision of law similar to article 1382 of the Civil Code of France, but it has not been used much until recently against acts of unfair competition."

PENAL CODE.-The Penal Code of Spain contains four articles applicable to certain forms of unfair competition. Articles 291 and 552 prohibit the counterfeiting of the distinctive signs of industrial or commercial establishments and the fraudulent imitation of industrial or literary property. The language of these articles is as follows:

ART. 291. The counterfeiting of seals, marks, notes, or countermarks which industrial or commercial undertakings or establishments use shall be punished with the penalties of correctional punishment by hard labor in its minimum and medium grades.

ART. 552. They shall likewise incur the penalties specified in article 550 who commit any defraudation of literary or industrial property.

Article 550 provides a penalty of major arrest in its minimum and medium grades and a fine equal to treble the damage caused. This penalty is applicable where the imitation is fraudulent and capable of deceiving the ordinary observer.

The substitution of trade-marks or names is prohibited by article 292 as follows:

ART. 292. With the penalty of major arrest and fine of 125 to 1,250 pesetas shall be punished, whoever sells the objects of commerce, substituting on them for the mark or name of the true manufacturer the mark or name of another supposed manufacturer.

Article 514 of the Penal Code prohibits the disclosure of industrial secrets:

ART. 514. The agent, employee, or workman of a factory or other industrial establishment who with injury to his employer discloses the secrets of his industry, shall be punished with the penalties of correctional imprisonment in its minimum and medium grades and fine of 125 to 1,250 pesetas.

LAW CONCERNING INDUSTRIAL PROPERTY.-The law of May 16, 1902, concerning industrial property, under chapter 10, contains

1 Corte d'appello, Napoli, 27 novembre 1905; Fratelli Branca c. Fratelli Branca fu Carlo e C.; II Filangieri, 1906, p. 58.

2 Lobe, Die Bekämpfung des unlauteren Wettbewerbes, Bd. I, S. 91.

several broad provisions for combating unfair competitive practices.1 Article 131 defines what is meant by unfair or unlawful competition (competencia ilícita), while article 132 specifies seven different classes of acts which constitute unlawful competition. Article 139 provides the penalties for infractions of article 132. The language of these three articles is as follows:

ART. 131. By unfair competition is understood every attempt to profit unlaw. fully from the advantages of an industrial or commercial reputation acquired by the efforts of another, and which is his property by virtue of the present law. ART. 132. As constituting acts of unfair competition are considered:

(a) The imitation of the designs or inscriptions of store windows, store fronts, decorations, or anything else susceptible of causing confusion with another establishment of the same kind adjoining or very near.

(b) The imitation of the wrappers used by a competing house in a manner to lead to confusion.

(c) Choosing as the name of an industrial or commercial organization a designation in which is included the name of a locality known as the seat of a well-known establishment with the object of profiting unlawfully from its reputation.

(d) Wilfully circulating false assertions against a rival with the object of taking away his customers.

(e) Publishing announcements, advertisements, or newspaper articles tending to depreciate the quality of the products of a competitor.

(ƒ) Announcing oneself in a general manner and contrary to the actual facts as a depositary of a product national or foreign.

(g) The use without proper authorization of designations or expressions such as 'prepared according to the formula of-" or "in accordance with the process of manufacture of -," unless the formula or the process belongs in the public domain.

ART. 139. In all the cases which constitute unfair competition, according to article 132, as well as in those of falsehood in the designations of provenance, the authors shall be punished with fines of from 100 to 500 pesetas; the accomplices with fines of from 50 to 250 pesetas; and the concealers with fines of from 25 to 175 pesetas, all these at the instance of the interested party.

According to one authority, the definition of unfair competition in articles 131 and 132 of the above law is incomplete and defective so that its scope is greatly restricted. In the first place only acts involving forms of industrial property protected by the law are prohibited, and in the second place the acts that can be prosecuted as unfair competition are specified in article 132, leaving all other acts beyond the reach of the law."

The following are examples of cases brought under the above provisions of law.

A company opened two coffee stores under the commercial name Tupinamba, having obtained the exclusive use of this name from the proper authorities. A competing concern opened stores directly op

1 Ley de 16 mayo de 1902 sobre la propriedad industrial; Boletin de la Revista General de Legislación y Jurisprudencia, Tomo, 116, pp. 117, 120.

2 Enciclopedia Jurídica Española (1910), Tomo VII, p. 634.